DSM Watch: Draft of Commission’s Copyright Communication leaked

It is a busy time in Brussels right now. Within the last few days, we have seen leaked drafts of a comprehensive staff working paper on the modernization of EU copyright rules, a draft copyright directive and a draft regulation on online transmission of broadcasts (see our respective blog post). At the end of last week, these were followed by a leaked draft communication which the Commission intends to issue later in September. It deals with the promoting of a fair and efficient European copyright based economy within the Digital Single Market. In a nutshell, the communication may be summarized as follows:

In section 1 the Commission summarizes the (legislative) measures that have already been proposed over the last couple of months in the aim to facilitate a modern, more European copyright framework. Those include in particular:

measures ensuring wider access to content across the EU,

the adapting of existing exceptions to digital and cross-border environments,

the achievement of a well-functioning marketplace for copyright, and

the provision an effective and balanced enforcement system.

The draft flags the existing draft regulation on cross-border portability of online content services, published in December 2015. If it is enacted EU residents will receive the right to travel in the EU with the digital content they have purchased or subscribed to at home.

Particular emphasis is laid on the new draft directive focusing on in total three new exceptions and limitations to copyright. These relate to text and data mining (Art. 3), cross-border teaching (Art. 4), and the preservation of cultural heritage (Art. 5). Whether further exceptions and limitations will follow is still subject to review. The Commission also states that it will closely monitor the copyright cases currently pending before the European Court of Justice in connection with a possible re-consideration of the law around onscreen consultation of works on institutional premises.

Moreover, the draft communication addresses proposals to ensure the implementation of the Marrakech Treaty for the benefit of people who are blind, visually impaired or have any other physical disability that restricts their ability to read normally.

Regarding the objective of achieving a well-functioning marketplace for copyright, the draft communication again highlights benefits of the proposed copyright directive. In a highly controversial move, the Commission proposes that news publishers should receive a neighbouring right and thereby additional negotiating power in relation to online services using and enabling access to digital news publications (Articles 11 to 16).

As regards the legal framework for the enforcement of IPR, including copyright, the communication mentions an evaluation of the overall functioning of the current legal framework. The final results are anticipated for autumn 2016. On this basis, the Commission will propose additional amendments to the legislative framework.

In section 2 the Commission provides background information on the scheduled and already adopted measures to improve access to European audiovisual works across borders, to increase the availability and visibility of works online and reach more audiences across borders. Those particularly include:

exploring of alternative models of financing, production and distribution, and

a more sustained exploitation of existing works.

In conclusion, the Commission once again emphasizes the ambitious nature of the Digital Single Market strategy and its implementation, particularly with respect to a modern EU copyright framework. Legislative initiatives and financial support need to go hand-in-hand. The Commission’s view is that European copyright industries need to be empowered to adapt and innovate in the digital environment. This is seen as the crucial condition for the overall success and global competitiveness of the European industries.

DSM Watch will be back with more analysis of the legislative initiatives summarized in the leaked communication when the drafts are published in final form, which is expected to be around mid-September.

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